Whether the lien holder who has acquired a civil lien for the real estate on which a disposition for arrears has been taken may exercise the lien for the purchaser in the auction procedure before the auction procedure commences (affirmative)

[Majority Opinion] Since civil execution procedures with respect to real estate are ordered to be seized along with the decision on commencing the auction, the auction procedure, which is the sale procedure, simultaneously with the decision on commencing the auction, is not initiated, unlike the seizure procedure under the National Tax Collection Act, at the same time as the seizure under the disposition on default pursuant to the disposition on default (hereinafter “disposition on default”), and the seizure on default does not necessarily lead to the public auction procedure, and the seizure on default does not necessarily lead to the seizure on default. In addition, as the procedure on default and civil execution are separate procedures with regard to real estate subject to the disposition on default, it cannot be seen as identical to the case where the seizure following the decision on commencing the auction was conducted in the auction

Therefore, even if the real estate is subject to the attachment of disposition on default, such circumstance alone does not lead to the fact that the lien holder who acquired a civil lien on the real estate before the auction procedure commenced and the registration of the decision on commencement of auction is not able to exercise the lien against the purchaser

[Dissenting Opinion by Justice Shin Young-chul, Justice Min Il-young, and Justice Park Poe-young] The procedure for disposition on default under the National Tax Collection Act is commenced by a seizure, and the effect of the seizure of real estate due to a disposition on default is the same as that of the seizure of real estate due to a registration on entry in the decision on commencement of auction in civil execution procedure. As such, the act of a tax delinquent to acquire a lien by transferring the possession of the real estate to a third party after the registration on the seizure on the real estate owned by a tax delinquent taxpayer takes effect, constitutes a disposal act that is likely to reduce the exchange value of the object identified by the disposition on default, and thus, it goes against

Furthermore, in cases where the real estate is sold at an auction procedure commenced after the seizure of the real estate by the disposition on default, the purchaser does not take over the burden of the disposition on default as if the real estate was sold at the auction procedure, and the registration of the seizure on default is cancelled. The exchange value of the object identified by the seizure on default by the preceding disposition on default should also be realized at the auction procedure commenced thereafter. As such, the person who acquired the lien by taking possession from the debtor after the seizure on default took effect cannot oppose the purchaser in the auction procedure by lien.

Article 320 of the Civil Act; Articles 83(1) and (4), 91(3) and (5), and 92(1) of the Civil Execution Act; Article 24(1) of the National Tax Collection Act

Supreme Court Decision 2005Da22688 Decided August 19, 2005 (Gong2005Ha, 1503) Supreme Court Decision 2006Da22050 Decided August 25, 2006 (Gong2007Sang, 263) Supreme Court Decision 2008Da70763 Decided January 15, 2009 (Gong2009Sang, 158) Supreme Court Decision 2009Da19246 Decided November 24, 201 (Gong2012Sang, 4)

Heung Life Insurance Co., Ltd. (Law Firm Global, Attorney Ba-joon, Counsel for the plaintiff-appellant)

SPS security system and 10 others (Attorneys Choi Young-young et al., Counsel for the defendant-appellant)

Daejeon High Court (Cheongju) Decision 2008Na642 decided July 14, 2009

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. A lien under the Civil Act is naturally established when a person who possesses another person’s object has a claim arising from the said object (Article 320(1) of the Civil Act). Therefore, even if a security right, such as a mortgage, has already been established on any real estate, a civil lien may be established on such real estate. Meanwhile, the Civil Execution Act provides that a lien established after the establishment of a mortgage shall be extinguished by sale, and contrary to the provisions regarding a lien, the lien shall not be distinguished from the establishment of a mortgage, but shall be taken over by the successful bidder in the auction procedure (Article 91(3) and (5) of the Civil Execution Act). Thus, a civil lien holder may exercise the lien against the buyer in the auction procedure even if he acquires the lien after the establishment of a mortgage. This is intended to secure the preferential satisfaction of the secured claim in the civil lien, taking into account the special nature of the secured claim in the civil lien, which is a claim arising from the occupied object.

However, even if a person acquires a lien on the real estate only when the auction procedure has already been initiated and is in progress, if the person holding the lien without any restriction permits the person holding the lien to exercise the lien on the real estate without any restriction, it would be highly difficult to promptly and appropriately realize the real estate for the purpose of the auction because the trust and procedural stability in the auction procedure would be seriously threatened, and the person interested in the auction procedure may suffer unexpected damages to the person holding the lien. Thus, it is not acceptable to preferentially protect only the person holding the lien in the sacrifice of other interested parties, including

Therefore, the Supreme Court held that the lien cannot be exercised against the purchaser of the auction procedure when the possession of the real estate was transferred or the secured claim was acquired after the registration of the decision on commencing auction was made (see, e.g., Supreme Court Decisions 2005Da22688, Aug. 19, 2005; 2006Da22050, Aug. 25, 2006).

Therefore, in a case where a lien is acquired after an auction procedure, which is a sale procedure, has commenced for the purpose of ensuring the legal stability of the execution procedure, such lien cannot be exercised for the purchaser of the auction procedure. Thus, in a case where a lien was acquired after a mortgage was established on real estate or after a provisional seizure was registered, if a civil lien was acquired before the commencement of auction procedure becomes registered, the successful bidder of the auction procedure may exercise the lien (see Supreme Court Decisions 2008Da70763, Jan. 15, 2009; 2009Da19246, Nov. 24, 201).

On the other hand, civil execution procedures concerning real estate are ordered to be seized along with the decision on commencing the auction. As such, while the auction procedure, which is the sale procedure, commences simultaneously with the decision on commencing the auction, the auction procedure which is the sale procedure under the National Tax Collection Act, unlike the seizure procedure under the disposition on default under the National Tax Collection Act (hereinafter “disposition on default”), the seizure on default does not necessarily lead to the public auction procedure, and the seizure on default does not necessarily lead to the seizure procedure. In addition, the procedure on default and civil execution procedure are separate procedures, which are separate from the procedure on public auction, and the seizure on real estate is carried out separately. Thus, it cannot be seen as the same as the case where

Therefore, even if the real estate is a real estate subject to a disposition for arrears, such circumstance alone does not lead to the fact that the lien holder who acquired a civil lien on the real estate before the auction procedure commenced and the registration of the decision to commence the auction procedure is not able to exercise the lien against the purchaser

2. A. According to the reasoning of the judgment below, where a creditor acquires a lien by taking possession of the real estate owned by the debtor after the registration of the decision on commencement of auction was entered in the real estate owned by the debtor and the seizure became effective, the transfer of such possession constitutes a disposal act likely to reduce the exchange value of the object and thus it goes against the prohibition of disposition of seizure, and thus, the possessor cannot set up against the purchaser of the auction procedure on the ground of the lien, and the same premise is premised on the same premise as in the case where the creditor acquires a lien after the registration of provisional seizure or the registration of the provisional seizure or the registration of the seizure of the disposition of arrears, which has the same effect as the seizure, entered, and the registration of the seizure of arrears, which has the effect of prohibition of disposition as to the real estate, was entered. According to the facts stated in the reasoning of the judgment below, the Defendants, the creditor of the instant hotel, such as the construction cost of the instant hotel, had already completed the registration of the disposition of arrears and the registration of provisional seizure of other creditors, thus the Defendants cannot set up against the purchaser of the auction procedure of this case.

B. However, according to the reasoning of the judgment below, the defendants acquired the right of retention for the hotel of this case before the auction procedure commenced with respect to the hotel of this case and the registration of the decision on commencement of auction is completed. If the defendants are recognized as civil lien holder, in light of the legal principles as seen earlier, even if the defendants registered the registration of provisional attachment or the seizure of delinquent disposition with respect to the hotel of this case before acquiring the right of retention, such circumstance alone does not make it impossible for the buyers to exercise the right of retention

Nevertheless, the court below determined that the defendants cannot exercise the right of retention on the ground that they acquired the right of retention after provisional seizure or seizure of provisional seizure or seizure of delinquent disposition on the hotel of this case. In this case, the court below erred by misapprehending the legal principles on provisional seizure or seizure of delinquent disposition and the validity of civil lien, which affected the conclusion

However, even though the plaintiff asserted that the defendants' exercise of the right of retention is contrary to the principle of good faith, the court below did not make a decision on this issue. Thus, the court below should examine this issue.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion by Justice Shin Young-chul, Justice Min Il-young, and Justice Park Poe-young, and a concurrence with the Majority by Justice Kim Chang-suk and Justice Kim So-young.

4. Dissenting Opinion by Justice Shin Young-chul, Justice Min Il-young, and Justice Park Poe-young

The Majority Opinion states that even if a real estate subject to a disposition on default is a real estate subject to a disposition on default, a lien holder who has acquired a civil lien (hereinafter only referred to as “the lien”) on such real estate before the auction procedure commences may exercise the lien to a purchaser in the auction procedure. However, we cannot agree with the Majority for the following reasons.

A. Where a third party acquires a lien by taking possession of a real estate from an obligor after the seizure had taken effect after the registration of the decision to commence the auction became final and conclusive, since the transfer of such possession constitutes an act that is likely to reduce exchange values of the object and thus goes against the prohibition of disposition of seizure under Articles 92(1) and 83(4) of the Civil Execution Act, it is the established Supreme Court’s decision that the possessor cannot oppose the purchaser of the auction procedure on the ground of such lien (see Supreme Court Decisions 2005Da22688, Aug. 19, 2005; 2006Da22050, Aug. 25, 2006, etc.).

Although the Supreme Court precedents have revealed that the grounds for denying the opposing power of a lien exist in the "the effect of prohibition of the disposition of seizure", unlike the attitude of the above precedents, the majority opinion finds the grounds for denying the opposing power of a lien by putting the "legal stability of the execution procedure" or "trust in the auction procedure" on the front, instead of putting the "legal stability of the execution procedure" or "trust in the auction procedure" on the front, and then finding the grounds for denying the opposing power of a lien. As long as a lien was acquired prior to the commencement of an auction procedure prior to the commencement of an auction procedure, even if the real estate was already seized at the time of its acquisition, it does not harm the "legal stability of the execution procedure" or "trust in the auction procedure", it does not hinder the buyer of the auction procedure from exercising the lien.

However, there is no doubt that the prohibition of disposition is effective in the seizure of delinquent taxes in accordance with the National Tax Collection Act. The Majority Opinion appears to have understood the seizure of delinquent taxes on real estate as being similar to the provisional seizure for the purpose of preserving compulsory execution in civil execution system, on the grounds that the seizure of delinquent taxes on real estate does not immediately commence due to the seizure of delinquent taxes on the ground that the procedure of selling the attached

The procedure for the disposition on default is a procedure for the compulsory realization of a tax claim from a delinquent taxpayer's property by granting a self-execution right to an administrative agency for the prompt satisfaction of a tax claim, and the seizure is initiated by a seizure and takes place at the stage of sale and liquidation, and it does not require a separate enforcement title or a new seizure following the commencement of a public sale procedure. Therefore, in comparison with a civil execution procedure, the seizure in a disposition on default falls under the principal seizure following the commencement of a compulsory execution procedure, not a provisional seizure for the preservation of future compulsory execution (the so-called preservation seizure prior to the confirmation under Article 24(2) of the National Tax Collection Act may be deemed as similar to the provisional seizure in the final civil execution procedure). Therefore, the effect of the seizure in a disposition on default on real property cannot be seen as different from the effect of the seizure in a civil execution procedure.

As the Supreme Court precedents explicitly and repeatedly declare, the acquisition of the lien is contrary to the prohibition of the disposition of the seizure, and therefore, it cannot be set up against the purchaser in the auction procedure.If the effect of the disposition prohibition, which is the legal effect of the seizure in arrears, is the same as that of the prohibition of the disposition of the seizure in the auction procedure, and as long as it is identical to that of the seizure in the auction procedure, the acquisition of the lien is naturally contrary to the prohibition of the disposition of the seizure in arrears. If the real estate is sold in the auction procedure after the seizure in arrears, the acquisition of the lien is naturally contrary to the prohibition of the disposition of the disposition of the seizure in arrears. The majority opinion silents as to whether the lien acquired after the seizure in arrears can be set up against the purchaser in the auction procedure after the seizure in arrears, and it is difficult to say that the majority opinion recognizes the opposing power of the lien acquired after the seizure in arrears notwithstanding the prohibition of the disposition of the seizure in arrears

If the Majority Opinion purports that a lien may be set up against a purchaser in the public auction procedure at any time, regardless of the time the lien is acquired, it is doubtful whether the “legal stability of the execution procedure” or its trust is to be waived in the public auction procedure, which is emphasized by the Majority Opinion, and whether it is worth protecting the lien is worth protecting the lien.

However, as seen above, the Majority Opinion does not regard the procedure of public auction, which is the procedure of sale, as similar to the provisional attachment, as the procedure of the disposition on default, as the procedure of the public auction begins. If the right of retention newly introduced under Article 67-2 of the National Tax Collection Act as amended by Act No. 10527, Apr. 4, 201, cannot be asserted against the purchaser of the public auction procedure, it is also difficult to find a reasonable ground. The public auction notification does not have any relation with the effect of the public auction notification (Article 84, 106 of the Civil Execution Act) that takes place after the effect of the registration on the commencement of the auction in the real estate auction procedure, and the public auction notification registration as well as the fact that it is conducted after the commencement of the procedure on the public auction against the third party (Article 84, 106 of the Public Auction Act). This is also the same as that of the public auction notification prior to the expiration of controversy over the effectiveness of the procedure on the public auction, and it is not the public auction notification of public auction notification of public auction.

Even if the exercise of the right of retention, which was acquired after the commencement of an auction procedure, is permitted to be detrimental to the legal stability of the execution procedure, for example, even if such possession constitutes a tort (Article 320(2) of the Civil Act) or is contrary to the effect of prohibition of disposition of seizure, the effect of the right of retention cannot be denied on the sole ground of “the legal stability of the execution procedure or its trust,” unless there are any grounds under the positive law that denies the right of retention, as stated in the Majority Opinion.

In short, it is a reasonable approach without theoretical contradiction to view that acquiring a lien after the attachment violates the prohibition of disposition of the attachment, as it violates the prohibition of disposition of the attachment in the auction procedure.

B. Meanwhile, even if the attachment of a disposition on default had the effect of prohibition of disposition such as attachment in the auction procedure, the majority opinion holds that the lien cannot be denied by the purchaser of the auction procedure, a civil execution procedure, claiming the effect of prohibition of disposition on default. However, it is difficult to agree with this.

As alleged in the Majority Opinion, the procedure for disposition on default under the National Tax Collection Act and that for civil execution are different from that under the current law. Accordingly, any real estate subject to a disposition on default may proceed with the auction procedure, and against the contrary, any real estate subject to a disposition on default under the Civil Execution Act may proceed with the public auction procedure by a disposition on default. As a result, any real estate subject to a disposition on default shall be determined by the person who first acquired the ownership in one procedure during the public auction procedure. However, even if the real estate is sold at an auction procedure, the two procedures are not subject to any influence on each other. If the real estate is sold at the auction procedure, priority is recognized in the dividend claim procedure, and where the real estate subject to a disposition on default has already been registered prior to the registration of the first decision on commencement of auction, even if the registration of a disposition on default was not made separately, it shall be deemed that the request on delivery having the nature of a request on distribution becomes effective, and thus, it shall be distributed in preference to the order of priority (see Supreme Court Decision 93Da22210, Sept. 14, 1993).

Despite the fact that two procedures are different, the legitimacy of cancelling the registration of the disposition of arrears when the real estate is sold in the auction procedure, even though there is a seizure prior to the seizure of the auction procedure, can be secured only when the exchange value of the real estate identified by the seizure of the preceding disposition of arrears is realized in the auction procedure, that is, when the real estate is sold in the public sale procedure according to the disposition of arrears.

However, if a person who acquired a lien before the commencement of the auction procedure as stated in the Majority Opinion where there exists a person who acquired the lien before the commencement of the auction procedure as stated in the Majority Opinion after the disposition on default, it is possible to claim the lien to the purchaser in the auction procedure, the taxation right holder who seized the lien may not claim the lien, as long as he/she pays dividends in accordance with the order of priority after the sale in the auction procedure. Therefore, if the purchaser of the auction procedure fails to obtain the satisfaction of the claim because the exchange value of the real estate identified at the time of the disposition on default is not realized in the auction procedure. For example, in cases where a third party acquired the lien after the disposition on default based on the taxation claim was taken place and the auction procedure was commenced, there is no difference in either the real estate sold in the auction procedure, or that the taxation right holder first receives dividends, regardless of whether it is sold in the auction procedure or in the auction procedure. However, if it is based on the Majority Opinion, the lien holder cannot claim against the purchaser in the auction procedure as long as the acquisition of the above lien goes against the disposition on default.

In the end, regarding the interpretation as stated in the majority opinion, where the real estate which was registered for the disposition of arrears prior to the registration of the decision on commencing the auction is sold at the auction procedure, it cannot be justified for the cancellation of the registration of the disposition of arrears. In order to justify the cancellation of the registration of the disposition of arrears, even if the lien was acquired before the auction procedure after the disposition of arrears was conducted, it goes against the prohibition of the disposition of the disposition of arrears seizure, and such real estate is not sold

In addition, since the current legal system regulates the relationship between the procedure for disposition on default and the procedure for civil execution within a certain scope and recognizes the way to obtain preferential payment to tax creditors in the auction procedure, a tax claimant who has seized the procedure for disposition on default is waiting to observe the procedure when the auction procedure is in progress, despite being waiting to receive preferential payment, if the effect of prohibition of disposition on disposition on default is denied in the auction procedure as stated in the majority opinion, the tax claimant who has seized the procedure for disposition on default intends to proceed with the public auction without waiting to keep the progress of the auction procedure and to deny the right of retention. Therefore, this would result in promoting the phenomenon in which the procedure for disposition on default overlaps with the procedure for auction and the procedure for disposition on default. This would result in unnecessary waste of time

Therefore, it cannot be the basis for the argument that the person who acquired the lien may oppose the successful bidder in the auction procedure after the attachment of the disposition on default is separate from the civil execution procedure after the attachment of the disposition on default. In order to enhance the efficiency by harmonious operation of the disposition on default and the civil execution procedure, the opposing power of the above lien should be denied in the auction procedure by virtue of the effect of prohibition of disposition on default in the disposition on default.

C. The Majority Opinion argues that, in cases where a disposition on default was made prior to the commencement of an auction procedure on real estate, the amount of delinquent taxes is small compared to the value of the real estate, and the registration on the disposition on default was made only for a long period of time without leading to the public auction procedure after the seizure on default. However, it seems that, in the disposition on default, it would be unreasonable to view that the lien acquired after the seizure on default cannot be asserted against the purchaser of the auction procedure by uniformly taking the effect of prohibition of disposition such as the seizure at the auction procedure on default, it would

However, it is difficult to change the legal treatment of the right of retention acquired after the disposition on default due to such consideration. If the real estate is sold after the auction procedure remains without releasing the attachment due to the payment of delinquent tax amount due to the payment of delinquent tax amount, etc., it is not different from the case where the real estate is sold in the auction procedure because the delinquent tax amount due to the disposition on default failed to repay the small amount of claims after the disposition on default became effective, so it does not vary from the case where the real estate is sold in the auction procedure because the delinquent tax amount due to the disposition on default is small amount compared to the value of the real estate or is not moving to the public auction procedure. Furthermore, it is not persuasive as to the grounds for recognizing the opposing power of the right after the disposition on default, that the seizure on default does not necessarily lead to the sale procedure, because the effect of the seizure upon the registration of the decision on commencement of auction takes effect by the entry of the disposition on default, and it does not necessarily change from the auction procedure, because there is no possibility that there is no possibility of surplus in the auction procedure (Article 102).

In the auction procedure, which is the first stage of the execution procedure, there is no difference between the auction, sale, and distribution. It is a difference if the attachment procedure, which is the first stage of the execution procedure, is conducted through the method of registration of entry of the decision on commencing the auction, rather than registration of the attachment, and immediately registering the attachment in the disposition on default, is different. If the attachment is conducted after investigating the current status of the real estate in the preparation stage for sale (Article 85 of the Civil Execution Act, Article 62-2 of the National Tax Collection Act), after determining the minimum sale price by appraisal (Article 97 of the Civil Execution Act, Article 63 of the National Tax Collection Act, Article 67 of the National Tax Collection Act), and after publicly announcing the sale (Article 106 of the Civil Execution Act, Article 67 of the National Tax Collection Act, and Article 145 of the National Tax Collection Act), the sale proceeds are distributed to creditors (Article 80 of the Civil Execution Act, and Article 80 of the National Tax Collection Act, as seen earlier, it is different from the sale notice procedure.

D. In conclusion, the procedure for the disposition on default under the National Tax Collection Act is commenced by seizure, and the effect of the seizure on real estate by the disposition on default is the same as that of the seizure on real estate due to the entry registration of the decision on commencement of auction in civil execution procedures. Therefore, since the act of a tax delinquent to acquire a lien by transferring the possession of the real estate to a third party after the registration on the seizure on real estate owned by a tax delinquent takes effect after the completion of the registration on the seizure on default, the act of a tax delinquent to acquire a lien by transferring the possession of the real estate constitutes a disposal act that is likely to reduce the exchange value of the object

Furthermore, in case where the real estate is sold at an auction procedure commenced after the seizure of the real estate by the disposition on default, the buyer does not take over the burden of the disposition on default as if the real estate was sold at the public auction procedure, and the registration of the seizure on default is cancelled. The exchange value of the object identified by the disposition on default by the preceding disposition on default should also be realized at the auction procedure thereafter. Thus, the person who acquired the lien by taking possession from the debtor after the disposition on default becomes effective shall not be able to oppose the buyer in the auction procedure as a lien

E. In this case, the court below's decision that the Defendants asserted the right of retention and cannot set up against the buyers in the auction procedure on the ground that the Defendants had been registered as a provisional attachment before acquiring the right of retention on the ground that the Defendants transferred the possession of the hotel in this case and registered as a provisional attachment on the hotel in this case before acquiring the right of retention is justifiable, and thus, the Defendants cannot set up against the buyers in the auction procedure on the ground that there was a registration of attachment attachment on the hotel in this case before acquiring the right of retention. Accordingly, the court below's decision that the Defendants cannot set up against

For the foregoing reasons, we express our concurrence with the Majority Opinion.

5. Concurrence with the Majority Opinion by Justice Kim Chang-suk

A. Article 91(3) of the Civil Execution Act provides that the right of retention shall be extinguished by the sale at the auction procedure, while Article 91(5) of the same Act provides that the purchaser of the auction procedure shall be liable for the repayment of the claim secured by the lien to the lien holder, and that the purchaser shall take over the burden of the lien, thereby providing that the lien shall not lose its effect regardless of the sale at the auction procedure. According to Article 91(5) of the same Act, the purchaser of the auction procedure can be deemed to take over the burden of the lien regardless of the time of acquisition of the lien, and no other interpretation may be made. Accordingly, in interpreting the above provision pursuant to the above, the buyer may acquire the lien at the time of the auction procedure, which is the time of the commencement of the auction procedure, and the buyer shall also be deemed to be liable for the repayment of the claim secured by such lien.

However, permitting this situation, the buyer of the auction procedure is bound to anticipate the existence and scope of the lien that is liable for repayment, and thus, it would make the stable operation of the auction procedure at a reasonable price impossible by fundamentally damaging the trust in the execution procedure. As a result, the buyer of the auction procedure may incur a big loss by purchasing real estate for the purpose of auction at an excessively intermittent value and bearing the liability for the repayment of a lien that is not expected to be gain or anticipated, rather than reasonable price. This result goes against the concept of justice in terms of legal stability of the execution procedure, as well as is not very desirable in terms of the legal stability of the execution procedure. Ultimately, there is no choice but to be a demand for a combined interpretation from the point of view of legal stability and justice. In such a case, the interpretation of the purpose of the auction procedure should be made within the scope necessary to remove the harm of the system without any damage to the extent that it can be the purpose of the system scheduled by the legislators, and such interpretation can not be justified if it exceeds such limit.

Therefore, in cases where a person acquires a lien by transferring the possession of the real estate after the attachment became effective due to the registration of the decision to commence the auction procedure, the transfer of such possession constitutes an act of disposal in conflict with the effect of the prohibition of the disposition of provisional seizure. However, in cases where a person acquires a lien by transferring the possession before the commencement of the auction procedure, such act cannot be deemed an act of disposal in conflict with the effect of the prohibition of the disposition of provisional seizure (see Supreme Court Decisions 2005Da22688, Aug. 19, 2005; 2009Da19246, Nov. 24, 201). The reason behind deeming that the same act of acquiring a lien by acquiring the possession of the real estate does not conflict with the effect of the prohibition of the disposition of provisional seizure and does not conflict with the effect of the disposition of provisional seizure, as seen in the Supreme Court Decision 2009Da19246, supra, the purport of the prohibition of the transfer of ownership or the effect of the disposition of provisional seizure would not conflict with the purport of the execution procedure.

B. As seen earlier, as seen in the Dissenting Opinion, the Dissenting Opinion does not examine whether the registration of the decision to commence the auction, namely, the validity of the right of retention acquired after the seizure, and the reason why the interpretation that the effect of the right of retention acquired after the seizure, even though the provisional seizure had the effect of the prohibition of disposition, are different from that of the registration of the decision to commence the auction, at the same time as the registration of the decision to commence the auction, and it reaches the conclusion that the effect of the right of retention acquired thereafter should be denied in the event there is a disposition for arrears with the same effect of the prohibition of disposition, and that the effect of the right of retention acquired thereafter should also be denied. Thus, the Dissenting Opinion argues that the effect of the right of retention acquired after the provisional seizure with the effect of the prohibition of disposition should also be denied. Nevertheless, if the Dissenting Opinion is inconsistent with the Supreme Court’s position that the effect of the right of retention acquired after the provisional seizure should be recognized,

Furthermore, if the Dissenting Opinion makes an interpretation that the validity of the lien acquired after the provisional attachment should be denied, as in the case of the lien acquired after the provisional attachment, it would maintain logical consistency. However, such interpretation would not be able to assert the legitimacy of the interpretation by clarifying the limitation of the objective interpretation that removes the harm generated in the execution process, beyond the limitation of the interpretation that the lien system would be eliminated.

In addition, in civil execution procedures, an order for seizure is issued simultaneously with a decision on commencing an auction procedure, which is a sale procedure, and the decision on commencing the auction procedure becomes effective when the debtor has been served on or the registration of the decision on commencing the auction procedure (Article 83(1) and (4) of the Civil Execution Act), so there may not be cases where only the seizure is made without the commencement of the auction procedure on real estate, and the seizure refers to the commencement of the auction procedure immediately. However, in the disposition procedure for arrears, the seizure does not mean the commencement of the public auction procedure, which is a sale procedure, but rather means to secure property to satisfy tax claims as the first stage of the disposition procedure for arrears. Therefore, the acquisition of the lien on the real estate subject to the disposition on default, which is a disposition on default, cannot be deemed as

We express our Concurrence with the Majority Opinion.

6. Concurrence with the Majority by Justice Kim So-young

A. The Civil Execution Act provides that "the decision to commence the auction procedure shall be ordered to seize the real estate at the same time (Article 83(1)), and seizure shall take effect when the decision is delivered to the debtor or when the registration is made pursuant to Article 94 (Article 83(4)). The above provisions shall apply mutatis mutandis to the auction procedure to exercise the security right as in the instant case (Article 268).

Although the effect of seizure in accordance with the above provision and the disposition of the debtor's relevant real estate is limited pursuant to the so-called "the effect of prohibition of disposal", it is not logical satisfy that the seizure should be denied the opposing power of the lien that has been acquired thereafter on the ground that the seizure has the effect of prohibition of disposal.

The effect of the prohibition of disposal is to restrict the disposal of the pertinent real estate to the owner of the real estate subject to auction, and even if the disposal is made, the effect of the disposal is to be relatively denied in relation to the purchaser on the auction procedure with the creditor requesting auction, and it does not become null and void in relation to the other third parties. Furthermore, if a request for auction is withdrawn, the effect of the disposal prohibition cannot be asserted as a matter of course against the third party because it is in relation to the creditor requesting auction. As to the validity of the seizure with the third party, where Article 92 of the Civil Execution Act provides that the third party becomes aware of the existence of a request for auction or seizure at the time of acquiring the right (Article 92 of the Civil Execution Act), the effect of the seizure cannot be asserted against the seizure (Article 1). In cases where the third party becomes aware of the existence of a request for auction or seizure at the time of acquiring the ownership at the time of acquiring the ownership of the subsequent third party who acquired the ownership,

The previous common view surrounding the interpretation of the above provision has the meaning of expanding the effect of the restriction on disposal that cannot be asserted without registration to a third party in bad faith with respect to a request for auction, such as the case where the decision on commencement of auction was served on the debtor prior to the registration of the decision on commencement of auction on the registration of the seizure, on the premise that the registration of the seizure can be set up against all third parties. However, no provision exists in our law that the seizure may be set up against the third party, and it does not mean that the effect of the restriction on disposal can be uniformly set up on the sole basis that the third party acquired the right to be contrary to

As a matter of course, a third party is expected to investigate the relationship of rights and to confirm the registry as to whether his/her rights have been properly registered at the time of the acquisition of the rights by the third party, the right that requires the registration of acquisition, loss, or acquisition of opposing power or is determined by the prior and subsequent registration, the opposing power of seizure against the right holder may be determined at the time of the registration of the decision on commencement of the auction. However, since the lien is a real right, but the right is acquired by possession and the right is determined by the prior and after the registration, the lien holder cannot be said to have planned to investigate and confirm the registry at the time of the acquisition of the right. Moreover, the seizure does not affect the debtor’s management and use of real estate (Article 83(2) of the Civil Execution Act) and thus, the act of acquiring real estate by the lien holder does not necessarily conflict with the validity

However, for this reason, if the lien holder permits the exercise of the lien against the purchaser of the auction procedure without any restriction, it would seriously violate the interests of other interested parties in the auction procedure by combining the principle of acceptance of the lien as stipulated in Article 91(5) of the Civil Execution Act, and make it difficult to secure legal stability in the auction procedure, and therefore, it is necessary to restrict the exercise of the lien according to certain standards. In such a way, if the possession is carried out by a tort, by expanding the Article 320(2) of the Civil Act, which provides that if the possession is carried out by a tort, it may be evaluated as an acquisition of the possession intentionally or negligently contrary to the effect of the seizure, and in principle, if the possession is transferred for the purpose of acquiring the lien, it may be evaluated as an acquisition of the possession intentionally or negligently contrary to the effect of the seizure. Accordingly, the acquisition of the lien may be denied.

In cases where the Supreme Court, in accordance with the subjective circumstances of the lien holder, takes place, rather than an interpretation of the lien holder, and the debtor acquires a lien by transferring the possession of the real estate to a third party after the provisional seizure takes effect, the transfer of such possession constitutes an act of disposal contrary to the prohibition of disposition of seizure, and thus cannot oppose the purchaser of the auction procedure on the ground of the above lien. In such cases, whether the creditor was aware of the fact that the decision on commencement of auction has been made or whether there was negligence on the part of the creditor, etc. who did not know thereof, shall not affect any conclusion (see Supreme Court Decision 2006Da22050, Aug. 25, 2006). Meanwhile, the Supreme Court takes the position that the effect of the seizure order would not conflict with the prohibition of disposal of the real estate where a third party acquires a lien by the debtor's possession after the provisional seizure registration of the real estate was completed, and thus, it is more likely that the seizure order would have been carried out in the auction procedure more promptly and more than the seizure order (see Supreme Court Decision 2009Da3846, supra.

B. As pointed out in the Dissenting Opinion, in cases where both civil execution procedures and delinquent disposition procedures are carried out simultaneously with respect to the same real estate as a compulsory realization procedure for a claim, even if they affect the same real estate within a certain scope, there are various differences in the specific procedures in progress as separate procedures. Accordingly, there are many differences in the general real recognition of the decision on commencing auction and the registration of the seizure of delinquent dispositions.

According to the Civil Execution Act, the court shall order the seizure of real estate upon receipt of a ruling to commence the auction, and shall determine and publicly announce the completion period to demand a distribution within one week from the time the seizure becomes effective after registration thereof (Article 84(3)), and the junior administrative officer, etc. shall demand the court to report the existence of claims, etc. to the creditors as referred to in subparagraphs 3 and 4 of Article 148 and to the public agency in charge of taxes and other public charges (Article 84(4)), and shall order an execution officer to investigate the current state of real estate and have an appraiser evaluate real estate (Article 85(1)) (Article 97(1)). The ruling to commence the auction shall also have the effect of the seizure regardless of the validity of the seizure as judgment by the court of execution which forms the basis of the auction procedure, and shall have the same effect regardless of the existence of the seizure (see, e.g., Supreme Court Decision 93Da9477, Jan. 28, 199).

However, in the case of the attachment of a disposition on default, the circumstances are entirely different. The National Tax Collection Act stipulates that the effect of the attachment of real estate takes effect at the time of completion of the registration or register (Article 47(1)), and that the delinquent taxpayer may use or benefit from the attached real estate, barring any special circumstance (Article 49(1)), but there is no provision on how to deal with the lien in the procedure of other disposition on default, and there is no provision on the same as Articles 91(5) and 92(1) of the Civil Execution Act.

Even if Article 91(5) and Article 92(1) of the Civil Execution Act can be applied mutatis mutandis to the procedure for disposition on default, the procedures for disposition on default are separately prescribed in Section 6 of Chapter 3 of the National Tax Collection Act, and the procedures for the sale of the attached property are separately prescribed in Section 10 of the same Chapter. In addition, there is no provision that the procedures for the sale of the attached property shall be carried out within a long period from the effective date of the seizure. In the case of a large case, the registration of the seizure on default shall be conducted only when the registration of the seizure on default is carried out, and a subsequent procedure shall be accompanied. Even in the case of an actual sale, the head of the tax office who conducts the public sale on behalf of the Korea Asset Management Corporation pursuant to Article 61(5) of the National Tax Collection Act rather than directly conducting the public sale on behalf of the owner of the attached property, and the period required until the request for the public sale on behalf of the owner of the attached property does not recognize that the public sale procedure was commenced before being notified of the public sale.

Therefore, inasmuch as the seizure of disposition on default is a seizure for the purpose of this execution, but only a registration is made, and the real procedure of sale is not carried out, it is considerably different from the seizure under the Civil Execution Act, and rather, it is close to the provisional seizure. Therefore, solely on the ground that the seizure on default is registered, the transfer of the possession to a third party for the use and profit of the real estate permitted by the National Tax Collection Act shall be deemed as a disposal act in conflict with the prohibition of disposition on the seizure on default, or the third party acquiring the possession of the seizure on default shall be deemed as having become aware of it as a matter of course.

As above, I express my concurrence with the Majority Opinion.

Justices Yang Chang-tae (Presiding Justice)